Citation: O'Sullivan v R [2021] NSWCCA 41
Court: NSW Court of Criminal Appeal
Date: 19 March 2021
Judges: Basten JA (with whom Harrison J and Adamson J agreed)
Background
In the early hours of 20 May 2018, an altercation broke out between two groups of men outside a 7-Eleven store at Windsor, north-west of Sydney. Three men who arrived together in a car were charged with various offences arising from the incident. The applicant was one of those three men.
The applicant pleaded guilty to affray and was acquitted of assault occasioning actual bodily harm in company. He was convicted by a jury on two counts of wounding with intent to cause grievous bodily harm. The present application for leave to appeal concerned only one of those counts: the wounding of a man referred to as Mr Krha, who had been struck on the head with a bottle (commonly described as being "glassed").
The central issue at trial was identification. It was not disputed that Mr Krha had been glassed. The question was whether it was the applicant or another man, Brandon Bennett, who had committed the act. The prosecution did not rely on joint criminal enterprise.
Legal Issues
- Whether the trial judge misstated the prosecution case in a material and significant respect, giving rise to a miscarriage of justice
- Whether leave should be granted under rule 4 of the Criminal Appeal Rules (NSW), given that no objection had been taken to the direction at trial
- Whether, as an alternative framing, the verdict was unreasonable and could not be supported by the evidence under section 6(1) of the Criminal Appeal Act 1912 (NSW)
Decision
The Court identified two procedural hurdles facing the applicant. Because the ground of appeal did not raise a question of law alone, leave was required under section 5(1) of the Criminal Appeal Act 1912 (NSW). Additionally, because trial counsel had not objected to the direction at the time, leave was also required under rule 4 of the Criminal Appeal Rules. The applicant sought to read an affidavit from trial counsel explaining the omission. The Court accepted there had been no deliberate forensic choice not to object, but found this point required no further exploration given its conclusions on the substance of the ground.
During argument, the Court raised whether the real issue might instead be whether the prosecution had proved beyond reasonable doubt that it was the applicant, rather than Bennett, who struck Mr Krha. This would have founded a ground that the verdict was unreasonable and unsupported by the evidence. Counsel for the applicant had considered but elected not to pursue that ground. After further reflection during the hearing, he maintained that election. The Court expressed no reason to doubt his assessment that an unreasonable verdict ground was unavailable.
On the pleaded ground, the Court found that the trial judge's misstatement of the prosecution case was minor. Even if the statement were understood as stronger than its express terms, it did not cause the applicant to lose a chance of acquittal that was reasonably open to him on the evidence. The Court outlined the evidence in some detail to explain this conclusion: the applicant was caught on CCTV walking toward Mr Krha ahead of the others, already emptying a bottle as he walked, suggesting he intended to use it as a weapon. Mr Krha's description to police of his attacker, as a large man of Pacific Islander appearance, was consistent with the applicant but not with Bennett. While Bennett could possibly be seen placing a bottle in his pocket, that was a matter the jury was entitled to weigh, and the evidence against the applicant was sufficient to support the conviction.
Orders Made
- Leave to appeal refused pursuant to Criminal Appeal Rules, rule 4, with respect to the sole ground in the application
- Application for leave to appeal dismissed
Key Takeaways
- A misstatement of the prosecution case by a trial judge will only ground an appeal where it was significant in a material respect and caused the applicant to lose a chance of acquittal reasonably open on the evidence.
- Where no objection was taken to an alleged misdirection at trial, leave is required under rule 4 of the Criminal Appeal Rules, and the absence of objection is a relevant consideration, even where there was no deliberate forensic choice to remain silent.
- In dismissing the application, the Court of Criminal Appeal confirmed that the confined terms of a pleaded ground of appeal will be assessed on their own merits, and will not automatically expand to encompass related but unpursued grounds such as unreasonable verdict.
- Sufficient evidence existed, including CCTV footage, the applicant's conduct in emptying a bottle immediately upon leaving the car, and the victim's description of his attacker, to support the jury's finding that the applicant was the person who glassed Mr Krha.
- An identification case turning on which of two possible offenders committed an act is not automatically undermined by the presence of a second person who also had access to a bottle; the jury is entitled to weigh all the circumstances.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Appeal Rules (NSW), r 4
Cases:
- R v Germakian (2007) 70 NSWLR 467; [2007] NSWCCA 373